St Louis, etc. R. R. Co. 22 Ind 26. As to what will constitute that degree of negligence for which a carrier of passengers will be held liable, it must of course depend upon the circumstances of each case; and is principally a question of fact for the jury, with proper instructions from the court. See Derwort v. Loomer, 21 Conn. 245. In Crofts v. Waterhouse, 3 Bing. 319, the driver of a stage-coach gathered a bank, and upset the coach, He had passed the spot where the accident happened twelve hours before, but in the interval a landmark had been removed. In an action for an injury sustained by this accident, Littledale, J., before whom the cause was tried, told the jury, that as there was no obstruction in the road, the driver ought to have kept within the limits of it; and that the accident having been occasioned by his deviation, the plaintiff was entitled to a verdict. A verdict having been returned accordingly, the Court of Common Pleas granted a new trial, on the ground that the jury should have been directed to consider whether or not the deviation was the effect of negligence. And per Best, C. J.: "The coachman was bound to keep in the road if he could; and the jury might, from his having gone out of the road, have presumed negligence, and on that presumption have found a verdict for the plaintiff. But the learned judge, instead of leaving it to the jury to find whether there was any negligence, told them that the coachman having gone out of the road, the plaintiff was entitled to a verdict. This action cannot be maintained unless negligence be proved; and whether it be proved or not is for the determination of the jury, to whom in this case it was not submitted."

(bb) Brockway v. Lascala, 1 Edm. Sel. Cas. 135.

(c) Weed v. Panama Railroad Co. 5 Duer, 198; s. c. 17 N. Y. 362.

(cc) Railroad Co. v. Barrow, 5 Wallace, 90.

1 Thomas v. Rhymney Railway Co. L. R. 6 Q. B. 266. And a railroad company using sleeping or drawing-room cars belonging to another company is liable to its

A person is a passenger who with intent to become a passenger, is riding to a station in a carriage run by the company to carry passengers to their station, although he has not bought a ticket nor formally announced his purpose; and, if injured, the company are liable. (cd)

* A carrier, who is not a common carrier, may be liable for injury to a passenger caused by his default; but not to one who rides * in his carriage, without any bargain, and without his authority. (d) Whether a common carrier is liable to a passenger to whom he has given passage, and from whom he has, therefore, no right to demand fare, is not so certain; but he would certainly be liable for gross negligence, and probably liable for any negligence. (e) He is certainly not excased by mere non-payment, unless payment has been de(cd) Buffett v. Troy, etc R. R. Co. 40 N. Y. 168.

{d) Lygo v. Newbold, 9 Exch. 802.

(e) This question arose in the case of The Philadelphia & Reading Railroad Co. p. Derby, 14 How. 468. in the Supreme Court of the United States, but was not decided. The court, however, strongly intimated an opinion in the affirmative. The circumstances of the case were these. The action was brought to recover damages for an injury suffered by the plaintiff on the railroad of the defendants. The plaintiff was himself a stockholder in the defendants' railroad company, and the president of another. He was on the road of the defendants by invitation of the president of the company, not in the usual passenger cars, but in a small locomotive car used for the convenience of the officers of the company, and paid no fare for his transportation. The injury to his person was occasioned by coming into collision with a locomotive and tender, in the charge of an agent or servant of the company, which was on the same track, and moving in an opposite direction. Another agent of the company, in the exercise of proper care and caution, had given orders to keep this track clear. The driver of the colliding engine acted in disobedience and disregard of these orders, and thus caused the collision. The court below instructed the jury, that if the plaintiff was lawfully on the road at the time of the collision, and the collision and consequent injuries to him were caused by the gross negligence of one of the servants of the defendants, then and there employed on the road, he was entitled to recover, notwithstanding the circumstances given in evidence, and relied upon by the defendants' counsel, as forming a defence to the action; namely, that the plaintiff was a stockholder in the company, riding by the invitation of the president, paying no fare, and not in the usual passenger cars, etc. The Supreme Court held this instruction to be correct, and Grier, J., in speaking of the grounds of a carrier's duty, said: "This duty does not result alone from the consideration paid for the service. It is imposed by the law, even where the service is gratuitous. 'The confidence induced by undertaking any service for another, is a sufficient legal consideration to create a duty in the performance of it.' See Coggs v. Bernard, and cases cited in 1 Smith, Lead. Cas. 06. It is true a distinction has been taken in some cases between simple negligence and great or gross negligence, and it is said that one who acts gratuitously is liable only for the latter. But this case does not call upon us to define the difference (if it be capable of definition), as the verdict has found this to be a case of gross negligence. When carriers undertake to convey persons by the powerpassengers for injuries received by the negligence of such other company or its servants, although a special ticket is necessary for riding on such cars, as by the fall of a berth, Penn. Co. v. Roy, 102 U. 8. 451; or for a wrongful removal therefrom by a porter, Thorpe v. N. Y. Cent. R. Co. 76 N. T. 402. Pullman Palace Car Co. v. Taylor, 65 Ind. 153, decided that a sleeping-car company was liable to one hiring a particular berth in a sleeping car, for a certain distance, by reason of its substitution of another car for its own convenience.